Workplace Bullying: Changes to the Fair Work Act 2009

Changes to the Fair Work Act 2009 came into place on 1 January 2014, bringing with them increased provisions regarding workplace bullying. Previously, workplace bullying could only be addressed through other more general areas of law such as workers compensation and anti-discrimination legislation. Now, the Fair Work Commission (FWC) has begun to directly manage these complaints.

The new provisions for “workers bullied at work” include contractors, apprentices and even work experience students and volunteers. However, some of the specifics are still unclear. A case involving an application for an order to stop the bullying of a manager by his employees opened discussion as to what ‘key factors’ denote bullying behaviour. They were determined as:

  • The behaviour must be repeated;
  • The behaviour must be unreasonable; and
  • The behaviour must create a risk to health and safety.

Importantly, these new amendments may also be applied to past acts of workplace bullying. Ms Kathleen McInnes claimed to have been bullied at work for 6 years between 2007-2013. The FWC claimed that the anti-bullying provisions can operate partly on past events in order to prevent future bullying and so could still be applied to past conduct.

Both managers and employees alike can be snared by these new provisions. If a bullying complaint is upheld by the FWC, the Commission is able to make orders that bullying behaviour cease. If it does not, workers are able to apply to the Federal Court for violation of the order. If the bullying continues, the bully may be fined (up to $51,000 for a corporation or $10,200 for an individual).

Directors and managers involved may also be held personally liable for bullying, either through their direct actions or due to a failure to intervene when made aware of the bullying circumstances. Therefore, employers must take even greater care to ensure a bulling-free workplace.